$2.25 Million Settlement in Pavement Drop-Off Crash

Plaintiffs have settled an accident claim in which an 85-year-old woman was killed and her 87-year-old husband was injured for $2.25 million.

The claim was unusual in that it involved both a legally impaired defendant driver and a claim against a paving company that was repaving the road at the time.

The accident occurred as the elderly couple was returning to their home in Eastern North Carolina following a doctor’s appointment. The two-lane road they were traveling on was in the process of being repaved, it was unlit, and it was raining. A pickup truck in the oncoming lane, driven by a 28-year-old man who had been drinking and was returning from hunting, went off the road, overcorrected, and came into the couple’s lane, causing a collision. The elderly woman died at the scene; her husband suffered orthopedic injuries and a closed head injury.

The driver of the pickup was never charged with DWI. Instead, the investigating trooper testified that during the more than one hour he spent in the driver’s presence, the trooper did not smell any odor of alcohol, the driver was coherent and showed no signs of having consumed alcohol and so the trooper did not perform a field sobriety test. The trooper brought the pickup driver to the hospital, where his blood was taken. Only after the pickup driver already had pleaded guilty to careless and reckless driving did his blood alcohol test come back showing a .08 reading, taken two hours after the wreck.

After settling with the driver for his policy limits, plaintiff sued the paving company for its role in the wreck. The pickup driver said it was very difficult to see that night because it was raining and there was no edge line on the road yet. He said when he went off the road, there was a substantial drop-off, causing him to lose control of his truck.

The paving company blamed the drunk driver entirely for the wreck, putting plaintiffs in the position of downplaying the pickup driver’s alcohol consumption and pointing to the lack of indications that he was surstantially impaired.

The night of the wreck, the trooper measured an 8-inch drop-off from the pavement to the shoulder of the road. Plaintiff alleged that N.C. Department of Transportation rules, which applied to the paving project, required that any drop-off larger than two inches had to be backfilled every night. The paving company argued that the DOT rule applied only to widening projects, and did not apply to resurfacing projects, which had a two-week window for backfill.

DOT witnesses were inconsistent in their testimony about the rule, although more endorsed the two-week window. Plaintiffs argued that regardless of the DOT rule, the paving company had created a dangerous condition by allowing an 8-inch drop-off to remain in place for some days. Plaintiffs’ accident reconstructionist testified that research showed that the driver of virtually any vehicle that experiences an 8-inch drop-off will lose control if they attempt to bring the vehicle back on the road.

The case settled shortly before trial. Since the start of the case, DOT has amended its rule, requiring that drop offs be fixed within 72 hours.

Settlement Report

• Wrongful Death, Personal Injury
• Amount: $2.25 million
• Case name: Confidential
• Court: Confidential
• Date of Settlement: September 2018
• Attorneys for Plaintiffs: David F. Kirby, Bill Bystrynski and Winston Kirby of Edwards Kirby, LLP, in Raleigh